Combatants and POWs

Introductory text

Combatants are members of armed forces. The main feature of their status in international armed conflicts is that they have the right to directly participate in hostilities. If they fall into enemy hands, they become prisoners of war who may not be punished for having directly participated in hostilities. It is often considered that customary law allows a detaining power to deny its own nationals prisoner-of-war status, even if they fall into its hands as members of enemy armed forces. In any event, such persons may be punished under domestic law for their mere participation in hostilities against their own country.

Combatants have an obligation to respect International Humanitarian Law (IHL), which includes distinguishing themselves from the civilian population. If they violate IHL they must be punished, but they do not lose their combatant status and, if captured by the enemy, remain entitled to prisoner-of-war status, except if they have violated their obligation to distinguish themselves.

Persons who have lost combatant status or never had it, but nevertheless directly participate in hostilities, may be referred to as "unprivileged combatants" – because they do not have the combatant's privilege to commit acts of hostility – or as "unlawful combatants" – because their acts of hostility are not permitted by IHL. The status of such persons has given rise to controversy.

Those who oppose that view argue that a person who does not fulfil the requirements for combatant status is an "unlawful combatant" and belongs to a third category. Like "lawful combatants", it is claimed, such "unlawful combatants" may be attacked until they surrender or are otherwise hors de combat and may be detained without judicial decision. The logic of this argument is that those who do not comply with the conditions set for a status should not be privileged compared to those who do.

Those who insist on the complementarity and exclusivity of combatant and civilian status reply that lawful combatants can be easily identified, based on objective criteria, which they will normally not deny (i.e. membership in the armed forces of a party to an international armed conflict), while the membership and past behaviour of unprivileged combatants and the future threat they represent can only be determined individually. As "civilians", unprivileged combatants may be attacked while they unlawfully directly participate in hostilities. If they fall into the power of the enemy, Convention IV does not bar their punishment for unlawful participation in hostilities. In addition, it permits administrative detention for imperative security reasons. From a teleological perspective, it is feared that the concept of "unlawful combatants", denied the protection of Convention IV, could constitute an easy escape category for detaining powers, as the Geneva Conventions contain no rule about the treatment of someone who is neither a combatant nor a civilian (see, however, P I, Art. 75).

MALLISON W. Thomas & MALLISON Sally V., "The Juridical Status of Irregular Combatant Under the International Humanitarian Law of Armed Conflict", in Case Western Reserve Journal of International Law, Vol. 9/1, 1977, pp. 38-78.

MALLISON W. Thomas & MALLISON Sally V., "The Juridical Status of Irregular Combatant Under the International Humanitarian Law of Armed Conflict", in Case Western Reserve Journal of International Law, Vol. 9(1), 1977, pp. 38-78.

MOORE Catherine, "The United States, International Humanitarian Law and the Prisoners at Guantánamo Bay", in The International Journal of Human Rights, Vol. 7/2, Summer 2003, pp. 3-27.

SASSÒLI Marco, "The Status of Persons Held in Guantánamo Under International Humanitarian Law", in Journal of International Criminal Justice, Vol. 2/1, March 2004, pp. 96-106.

Cases and Documents

Readings

Suggested reading:

CHADWICK Elizabeth, "The Legal Position of Prisoners, Spies and Deserters during World War I", in RDMDG, Vol. 36/3-4, 1997, pp. 73-113.

FERRELL William H., "No Shirt, No Shoes, No Status: Uniforms, Distinction and Special Operations in International Armed Conflict", in Military Law Review, Vol. 178, Winter 2003, pp. 94-140, online: http://www.fas.org/man/eprint/ferrell.pdf.

SCHMITT Michael N., "War, International Law, and Sovereignty: Reevaluating the Rules of the Game in a New Century: Humanitarian Law and Direct Participation in Hostilities by Private Contractors or Civilian Employees", in Chicago Journal of International Law, Vol. 5, 2005, pp. 511-546.

Further reading:

BOUMEDRA Tahar, "International Regulation of the Use of Mercenaries in Armed Conflicts", in RDMDG, Vol. 20/1-2, 1981, pp. 35-87.

LIEBLICH Eliav, "The Status of Mercenaries in International Armed Conflict as a Case of Politicization of International Humanitarian Law", in Bucerius Law Journal, H. 3/2009, December 2009, pp. 115-123.

Readings

Suggested reading:

KASTENBERG Josh, "The Customary International Law of War and Combatant Status: Does the Current Executive Branch Policy Determination on Unlawful Combatant Status for Terrorists Run Afoul of International Law, or Is It Just Poor Public Relations?", in Gonzaga Law Review, Vol. 39, 2003-2004, pp. 495-537.

BOGAR Thomas J., "Unlawful Combatant or Innocent Civilian? A Call to Change the Current Means for Determining Status of Prisoners in the Global War on Terror", in Florida Journal of International Law, Vol. 21, No. 1, April 2009, pp. 29-91.

CARVIN Stéphanie, "Caught in the Cold: International Humanitarian Law and Prisoners of War during the Cold War", in Journal of Conflict & Security Law, Vol. 11, No. 1, 2006, pp. 67-92.

TSE Ka Ho, "The Relevancy of Nationality to the Right to Prisoner of War Status", in Chinese Journal of International Law, Vol. 8, No. 2, pp. 395-421.

MURPHY Ray & EL ZEIDY Mohammed, "Prisoners of War: a Comparative Study of the Principles of International Humanitarian Law and the Islamic Law of War", in International Criminal Law Review, Vol. 9, No. 4, 2009, pp. 623-649.

III. Treatment of prisoners of war

Introductory text

Those who have prisoner-of-war status (and the persons mentioned in GC III, Art. 4(B); GC I, Art. 28(2); P I, Art. 44(5)) enjoy prisoner-of-war treatment. Prisoners of war may be interned without any particular procedure or for no individual reason. The purpose of this internment is not to punish them, but only to hinder their direct participation in hostilities and/or to protect them. Any restriction imposed on them under the very detailed regulations of Convention III serves only this purpose. The protection afforded by those regulations constitutes a compromise between the interests of the detaining power, the interests of the power on which the prisoner depends, and the prisoner's own interests. Under the growing influence of human rights standards, the latter consideration is gaining in importance, but IHL continues to see prisoners of war as soldiers of their country. Due to this inter-State aspect and in their own interest, they cannot renounce their rights or status.[ 6]

Readings

Suggested reading:

BORELLI Silvia, "Casting Light on the Legal Black Hole: International Law and Detentions Abroad in the 'War on Terror'", in IRRC, No. 857, March 2005, pp. 39-68.

CRAWFORD Emily, The Treatment of Combatants and Insurgents under the Law of Armed Conflict, Oxford, OUP, 2010, 213 pp. CRYER Robert, "The Fine Art of Friendship: jus in bello in Afghanistan", in Journal of Conflict and Security Law, Vol. 7/1, 2002, pp. 37-83.

GILLARD Emanuela-Chiara, "There's No Place Like Home: States' Obligations in Relation to Transfers of Persons", in IRRC, Vol. 90, No. 871, September 2008, pp. 703-750.

LEVIE Howard S., "Legal Aspects of the Continued Detention of the Pakistani Prisoners of War by India", in AJIL, Vol. 67 (3), 1973, pp. 512-516.

MEYER Michael A., "Liability of POWs for Offences Committed Prior to Capture – The Astiz Affair", in ICLQ, Vol. 32, 1983. Ministry of Foreign Affairs of Denmark, "The Copenhagen Process on the Handling of Detainees in International Military Operations", in Revue de droit militaire et de droit de la guerre, Vol. 3-4, No. 46, 2007, pp. 363-392.

POCAR Fausto, "Violence on Civilians and Prisoners of War in the Jurisprudence of International Criminal Tribunals", in Anuário brasileiro de direito internacional = Brazilian Yearbook of International Law, Vol. 2, No. 4, 2009, pp. 11-30.

VI. Repatriation of prisoners of war

Introductory text

As prisoners of war are only detained to stop them from taking part in hostilities, they have to be released and repatriated when they are unable to participate, i.e. during the conflict for health reasons and of course as soon as active hostilities have ended. Under the influence of human rights law and refugee law it is today admitted that those fearing persecution may not be forcibly repatriated. As this exception offers the Detaining Power room for abuse and risks rekindling mutual distrust, it is suggested that the prisoner's wishes are the determining factor, but it can be difficult to ascertain those wishes and what will happen to the prisoner if the Detaining Power is unwilling to grant him/her asylum. On the latter point, many argue that a prisoner of war who freely expresses his/her will not to be repatriated loses prisoner-of-war status and becomes a civilian who remains protected under Convention IV until resettlement.[ 7]

Readings

Suggested reading:

DINSTEIN Yoram, "The Release of Prisoners of War", in Studies and Essays on International Humanitarian Law and Red Cross Principles in Honour of Jean Pictet, Geneva/The Hague, ICRC/M. Nijhoff, 1984, pp. 37-45. SASSÒLI Marco, "The Status, Treatment and Repatriation of Deserters under International Humanitarian Law", in Yearbook of the International Institute of Humanitarian Law, 1985, pp. 9-36. SCHAPIRO L. B., "Repatriation of Deserters", in BYIL, Vol. 29, 1952, pp. 310-324. SHIELDS DELESSERT Christiane, Release and Repatriation of Prisoners of War at the End of Active Hostilities: A Study of Article 118, paragraph 1, of the Third Geneva Convention Relative to the Treatment of Prisoners of War, Zurich, Schulthess, Études suisses de Droit international, Vol. 5, 1977, 225 pp.